Are they tears or is that thick black coal smoke in your eyes?

So much for that. The grand idea of adapting the law of negligence to protect us and future generations from the ravages of climate change has been consigned to the dustbin of legal innovations by the Full Court of the Federal Court of Australia.

The court delivered its unanimous verdict this morning, overturning the revolutionary judgment by Justice Bromberg in May 2021, in which he found that the minister for the environment has “a duty to take reasonable care to avoid causing personal injury to [children under the age of 18] when deciding under…the EPBC Act, to approve or not approve” a coalmine extension.

The minister, Sussan Ley, was considering a mine expansion in NSW under the Environment Protection and Biodiversity Conservation Act. She has statutory duties to take environmental considerations into account. The judge found that, beyond these, she also has a duty at general law to consider the impact of her decision on children and, specifically, the future viability of the environment in which they’d like to continue living.

The case had been brought by a group of eight brave young people led by Anjali Sharma, and lawyer David Barnden, on behalf of every Australian child.

Bromberg, after receiving a massive volume of evidence about the impacts of carbon emissions from the burning of coal on the environment, concluded the risks were foreseeable on the current state of knowledge and that, consequently, the minister (and through her, the government) owes a duty to take reasonable care to avoid causing personal injury or death to young people due to the increases in emissions.

It was a radical extension of the doctrine of negligence, which imposes a legal duty of care on people and institutions in myriad contexts where their actions or inactions may cause harm to other people who don’t have a say in the matter. A doctor owes a duty of care to their patients to exercise their skill expertly; a council to the public to maintain the streets and swings; a shopkeeper to customers to make sure they don’t slip and fall. 

The duty is pervasive and, since its invention by the House of Lords in 1932, has evolved and morphed to provide a society-wide insurance net for most things that go wrong and cause injury or loss. It wasn’t, therefore, an entirely crazy idea to suggest that it should go so far as to require governments to protect their citizens from the known and inevitable harm which climate change is already causing and which they are uniquely placed to mitigate or even prevent.

However, the Full Court said no. The three appeal judges had different reasons for saying so, but in essence their logic is that this is a legal bridge too far. To recognise the duty in this context would create a monster of ill-defined and incoherent proportions. 

The judgment wasn’t available in time for my deadline, but I get the impression the judges were concerned that allowing this precedent to stand would cause mayhem and potentially paralyse the efficient functioning of government.

My personal view is that it’s a shame that lawyers had to make this attempt at all, to resort to the law of negligence to try to impose some degree of responsibility on our government to stop being an environmental vandal and take its role seriously.

Fundamentally this should not be a question of a duty of care. It should be a question of right. If Sharma and every other Australian child should be entitled to look forward to a future life not existentially endangered by the abject failure of preceding generations to take climate change seriously and do something about it, then it is a short ethical step to recognising that as a basic human right: the right to live, which requires an inhabitable planet.

The case may go on to the High Court, although I am not convinced that that court would even consider it worthy of its attention. In any event, the law as at this moment is what the Full Court has just said: we are legally unprotected from governmental failure to address climate change.

The case was worth bringing, and my admiration and encouragement go to the kids and their lawyers. Heroic failure is nothing to be ashamed of.

They have highlighted a failure in our framework of legal protections, from the greatest risk of all: extinction. The solution lies in the recognition of our right to go on breathing. That is where the fight needs to be taken.